The FBI Does It Again

The FBI acknowledged it improperly accessed Americans’ telephone records, credit reports and Internet traffic in 2006, the fourth straight year of privacy abuses resulting from investigations aimed at tracking terrorists and spies.

The breach occurred before the FBI enacted broad new reforms in March 2007 to prevent future lapses, FBI Director Robert Mueller said Wednesday. And it was caused, in part, by banks, telecommunication companies and other private businesses giving the FBI more personal client data than was requested.

Testifying at a Senate Judiciary Committee hearing, Mueller raised the issue of the FBI’s controversial use of so-called national security letters in reference to an upcoming report on the topic by the Justice Department’s inspector general.

An audit by the inspector general last year found the FBI demanded personal records without official authorization or otherwise collected more data than allowed in dozens of cases between 2003 and 2005. Additionally, last year’s audit found that the FBI had underreported to Congress how many national security letters were requested by more than 4,600.

At the end of the article is a very apt quote by a former FBI official:

“The credibility factor shows there needs to be outside oversight,” said former FBI agent Michael German, now a national security adviser for the American Civil Liberties Union. He also cast doubt on the FBI’s reforms.

“There were guidelines before, and there were laws before, and the FBI violated those laws,” German said. “And the idea that new guidelines would make a difference, I think cuts against rationality.”

A charter defining the FBI’s scope and powers as well as requiring more regular congressional oversight would go a long way to ensuring against the terrible abuses of the FBI’s past. A detailed proposal for such a charter is beyond the scope of this Article. The bulk of such a charter, however, could be composed by codifying existing internal FBI Guidelines into law. The Church Committee recommended a legislative charter to govern intelligence gathering activities, but many of the Committee’s proposals were put into operation through executive orders and guidelines. Executive orders and Attorney General Guidelines are the “primary source of authority for national security surveillance.”

Unfortunately, executive orders and guidelines can all be changed by executive fiat, as demonstrated by Ashcroft’s substantial revision to the guidelines in 2002. Moreover, the Attorney General Guidelines are not judicially enforceable. The problem with the current system is that it relies extensively on self-regulation by the executive branch. Much of this regulation has been effective, but it can too readily be changed in times of crisis without debate or discussion. Codifying the internal executive regulations of the FBI would also allow for public input into the process. The FBI is a very powerful arm of the executive branch, and if we believe in separation of powers, then it is imperative that the legislative branch, not the executive alone, become involved in the regulation of the FBI. The guidelines should be judicially enforceable to ensure that they are strictly followed.

I recommend that the original FBI guidelines, under Attorney General Levi, should be used as the foundation for a legislative charter for the FBI. The Levi Guidelines were crafted to prevent the abuses chronicled by the Church Committee, and they provide strong limits on the use of surveillance directed at free speech and political activities. The threshold standards of the Levi Guidelines are more meaningful than the watered-down versions employed in subsequent revisions. The Levi threshold standards are not insurmountable—they are a practical compromise between privacy and effective law enforcement that safeguards against abuses.

Additionally, the charter should require Congress to undertake an extensive assessment of intelligence activities at five- to ten-year intervals. This assessment would be similar in scope to the Church Committee Report. The Church Committee performed a profoundly valuable service, exposing and memorializing surveillance abuses that occurred over a period of about forty years. This kind of thorough accounting of the often clandestine activities of governmental intelligence agencies should not be an isolated undertaking.